Friday, June 24, 2011


By William J. Skinner
In a case decided on June 16, 2011, the U.S. Supreme Court filed a unanimous opinion in a Pennsylvania case saying that an individual has standing to defend a criminal charge as being based on an unconstitutional statute under the 10th Amendment.

The opinion clears up some confusion about a sentence in an old opinion in a 1939 case where states sued the Tennessee Valley Authority over the right of the Federal government to compete in selling electricity. Tennessee Electric Power Co. v.TVA, 306 U.S. 118. The Supreme Court seemed to limit the 10th amendment to the states.

In the current case, Carol Anne Bond v. United States, Mrs. Bond was convicted of two counts under 18 U.S.C. § 229, a Federal statute, of possessing and using a chemical that can cause death, temporary incapacitation, or permanent harm to humans or animals. She pled guilty with the right to appeal and received a six year sentence.

The appeal went from the U.S. District Court in Eastern Pennsylvania to the Circuit Court of Appeals for the Third Circuit. The Third Circuit affirmed the decision on the basis of one sentence in the 1939 opinion.

In the 2011 decision the Supreme Court made perfectly clear that there was an individual right to use the 10th amendment as well as a state right to use the 10th amendment. The Supreme Court sent the case back to the Third Circuit to decide if the statute was unconstitutional under the 10th amendment. So the case could return to the Supreme Court.
Please pass this on to all your attorney friends, especially those practicing criminal defense law, so that they know what has happened. The full opinion is available at:

The dividing line between Federal and State law spheres of operation could be refined over the next several years if the right cases are appealed to the higher courts. This is about more than the enumerated powers belonging to the Federal and the other powers belonging to the states. These other powers now belong to the people, just as the 10th amendment states.